In mediation, the parties involved set the tone of the negotiation
If in a direct negotiation the dispute between lawyers in defense of the interests of their clients prevails, in mediation the goal is a friendly solution led by the parties involved, who are advised by their lawyers, pointed out, last Tuesday, 23rd, the lawyers Cláudia Grosman, Nathalia Mezzonetto, Rodrigo Azevedo and Manoel J. Pereira do Santos, from the Intellectual Property Dispute Resolution Center of the Brazilian Intellectual Property Association (CSD-ABPI). They attended the virtual roundtable “Business skills of the lawyer in crisis scenarios: brainstorming and tools”, a preview of the WIPO-ABPI Program, to be held in March/April with the same participants.
Another difference between the two forms of negotiation is that in the direct one between the parties the issues to be dealt with are central, with solutions brought by lawyers, while mediation is broader, managing to uncover unforeseen solutions and alternatives, not necessarily reaching the desired agreement. “Mediation is much more about treating the problem; it is more comprehensive and can bring collateral results that do not necessarily result in an agreement”, says Pereira do Santos, president of CSD-ABPI. “A skilled mediator creates a new environment that makes the parties feel free to bring out their real interests and motivations, thus opening up a wider range of possible compositions for the solution of the conflict”, explains Azevedo, who is the deputy director of the Mediation Chamber of CSD-ABPI.
Unlike the direct negotiation, where the lawyer takes the lead, in mediation, he is a co-participant, having a more advisory role. He acts before, during, and even after the process, whether advising his client to adopt mediation as a way of resolving the conflict, clarifying its legal aspects, assessing risks, or outlining scenarios. “The lawyer must have a collaborative attitude in the process”, says the president of CSD-ABPI. “It is up to the lawyer to filter what will be brought to the mediation, so his role is fundamental”, adds Mazzonetto, a mediator at the Mediation Chamber of ABPI.
Mediator specialization is not a mandatory requirement, but it can be an advantageous attribute in the mediation process in disputes of a more technical nature, such as corporate and intellectual property. “The mediator has to know the technique on how to reach an agreement between the parties, but he also needs to know the topic reasonably”, says the president of CSD-ABPI. “The mediator’s primary competence is mediation techniques, but it is important that he has the mastery of the topic so that the agreement is consistent and covers what is necessary and effective”, adds Azevedo.
The webinar was a warm-up for the Mediation Course – The attorney’s perspective in times of crisis that will take place in March and April. Registrations can be made through ABPI’s website. Click here to access it.
To follow the full webinar, acess it.